When “Giovanni,” a commercial truck driver in his forties, was granted legal permanent US residency in 2010, he thought that his troubles with immigration were over. Giovanni had lived in the US without authorization since he was a teenager, and when he married Susan, a US citizen, she submitted a residency petition on his behalf. Like most immigrants who entered the US without permission, Giovanni had to return to his native country, Mexico, while his case was processed. Eighteen months and more than ten thousand dollars later, Giovanni came back to the US—this time with green card in hand. But life as a legal immigrant has not gone smoothly so far. Giovanni constantly feels stressed out that his US residency could be revoked. A misspelling on his green card has left him unable to get a driver license and subjects him to extensive interrogations when he travels. Most important, he says that the long months away from his family took a toll on his relationship with his wife and daughter, and they now must work hard to put their lives back together.
Still, Giovanni could be considered lucky. After all, his marriage to Susan did eventually allow him to legalize his immigration status. Indeed, marriage to a US citizen is one of the few relationships that allow some undocumented people in the US to change their status. Further, Giovanni and Susan were able to pay more than ten thousand dollars in attorney and immigration fees, and they also had enough savings and credit to allow them to survive 18 months without Giovanni’s income. In addition, Giovanni has no criminal record, speaks English, has a stable work history, and otherwise fits the standard stereotype of a model immigrant. As a boon to their case, Susan does not speak Spanish, is unfamiliar with Mexico, and was thus able to persuade immigration agents that moving to Mexico would constitute an extreme hardship for her. In all, Susan’s US citizenship and her “whiteness,” coupled with their class and sociolegal characteristics, enabled Giovanni to attain legal US residency. Most of the 11.7 million unauthorized people living in the US are not so fortunate.
As restrictive immigration and border policies create a global class of non-legal migrant workers, so too do policies that confer lawful status reinforce racial, class-based, and gendered inequalities within the United States. Legalization policies favor immigrants who typify a “hard working and tax paying” assimilationist narrative, while the working-poor, unemployed, and those with criminal records are often both ineligible for legal status and deemed undeserving of it. The resulting hierarchy of US immigrants both elides the complicity of US policies in creating categories of immigrant (and criminal) in the first place and masks the degree to which contemporary policies reproduce historical inequalities. Given the recent slew of proposed and actual reforms to the US immigration system, in this piece I consider how changing criteria for legal inclusion uphold existing racial, class-based, and gendered inequities and form part of a larger body of practices that hinder poor people of color from exercising citizenship in a “postracial” United States.
A Broken System
It has become commonplace to say that the US immigration system is broken, and stories like Giovanni’s appear to confirm this truism. In fact, pervasive agreement that the immigration system is broken has helped drive recent reforms to immigration programs, and it has culminated in a proposed overhaul of the US immigration system that was passed in the Senate this year.
In 2012 and 2013, the Obama administration launched two new immigration programs in response to mounting pressure from immigrant rights activists, many of whom are undocumented. First, in the summer of 2012, the Deferred Action for Childhood Arrivals (DACA) program allowed unauthorized youth who arrived in the United States when they were sixteen years old or younger, and who have graduated from or are enrolled in high school, to apply for a two-year deferral of deportation and a work permit. While DACA can potentially provide relief for some two million currently unauthorized youth, DACA’s inclusion criteria also reinforce class-based and moral distinctions among immigrants by valorizing students at the expense of low-skill workers and “innocent” youth at the expense of their “law breaking” parents.
Further, DACA does not allow unauthorized youth to integrate fully into US society; “DACAmented” youth cannot apply for legal permanent residency or US citizenship and are not eligible for federal financial aid, ObamaCare, or most other public services. DACA is one of several immigration programs (including TPS and guest worker programs) that together create a sub-class of US immigrants who are neither fully legal nor illegal but who are registered with the state and subject to routine state surveillance.
A second immigration program, known as the provisional waiver program, went into effect in March 2013. The primary benefit of this program is that it allows certain unauthorized relatives of US citizens to remain in the United States while portions of their immigration case are processed, reducing the amount of time that mixed status families are separated by immigration processing. In the case of Giovanni and Susan, this program would have allowed them to stay together while their hardship waiver was processed, likely reducing the time that Giovanni was in Mexico from 18 months to just a few weeks.
Like DACA, the provisional waiver program potentially provides significant relief to millions of families while also reinforcing distinctions between “more” and “less” deserving immigrants. First, only unauthorized people who crossed a US border without permission, as opposed to those who entered with a temporary visa and overstayed it, must leave the US in the first place; this requirement disproportionately burdens working-class Latin Americans. Second, only certain relationships qualify an unauthorized person for the provisional waiver program, requiring families to conform to idealized prototypes of a nuclear family. Third, many of the mixed status families who have applied for the program have been denied because the unauthorized person has been convicted of a minor criminal offense, fortifying distinctions between “worthy” model immigrants and “unworthy” immigrants with criminal records. Finally, most eligible families can ill afford to pay thousands of dollars of legal and immigration fees, closing this option to all but the relatively well-off.
In June 2013, the US Senate passed sweeping comprehensive immigration reform legislation. While the likelihood that this bill, nicknamed CIR 2013, will ever become US law is dim and fading fast, its content is nevertheless instructive. CIR 2013 is the first immigration bill in nearly thirty years to include a broad legalization program for currently unauthorized immigrants; for this reason alone, its passage in the Senate is widely considered to be a victory for the immigrant rights community. Yet the legalization provision comes with a heavy price tag.
In the bill’s current iteration, unauthorized people would need to satisfy a battery of criteria to be eligible for the legalization program, including continuous employment, an average income above the Federal poverty level, and payment of costly fees and penalties. These criteria are especially onerous for working-poor and impoverished immigrants and for immigrants who work in seasonal industries and the informal economy—in particular, they are likely to impede legalization for immigrant women who stay home to take care of children or who do domestic or other informal work. Further, program participants would be required to continually satisfy these criteria for upwards of 15 years or more. During this time, they would hold a provisional status, much like parole, in which their movement will be restricted and their behavior monitored closely. Those who lose eligibility during the provisional period would become subject to detention and deportation, joining an estimated 4 to 5 million people who are not expected to qualify for the legalization program in the first place.
If CIR 2013 or a similar bill were to become law, its effects on the unauthorized population of the US would be profound. First, such a bill would bring millions of unauthorized people out of the shadows and into the waiting embrace of the state, where they would be fingerprinted, registered, and either detained and deported or surveilled and regulated for a prolonged and indefinite period. Second, it would further institutionalize distinctions between more and less deserving immigrants based on criteria that are especially related to race, gender, and class. Third, it would force unauthorized people, especially women, into the US workforce in ever-larger numbers. Finally, the provisions of CIR 2013 would shift the risks of deportation from random and unpredictable encounters with immigration enforcement to a pervasive and constant surveillance by agents of the state. That so many members of the immigrant community support this bill in spite of its conditions is a mark of the hardship they experience as undocumented persons.
Not only do contemporary immigration policies reproduce existing inequalities, they are but one component of a body of practices, including voter ID laws and mass incarceration, that block the attainment and exercise of citizenship rights for poor people of color throughout the United States. While race and racism continue to preserve inequality, race is no longer explicitly invoked to justify inequality in a postracial United States. To make sense of persistent categorical inequalities, overtly racist tones of political discourse on immigration are veiled, while illegality and criminality have become socially acceptable bases for exclusion and subordination of working-class people of color.
Ruth Gomberg-Muñoz is an assistant professor of anthropology at Loyola University Chicago. Her research explores immigration categories as mechanisms of persistent inequality in a post-racial United States.